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Elonis v. United States

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  1. Newsgathering
The case interprets 18 U.S.C. 875(c), which prohibits interstate transmission of a threatening communication. Mr. Elonis posted on his Facebook…

The case interprets 18 U.S.C. 875(c), which prohibits interstate transmission of a threatening communication. Mr. Elonis posted on his Facebook page several raps about his ex-wife and the judge presiding over their child custody battle. The appeal turns on whether "true threats" — which are not protected speech — should be evaluated based on the speaker's subjective intent to threaten, or based on whether an objective/reasonable listener would take the statements as threats. We argue that a subjective intent test is necessary to protect members of the media and provide the broadest leeway for protected commentary, satire and reporting. We do not argue that Mr. Elonis should escape liability for his statements, but rather that the test the lower court applied was erroneous.